Party registration decision: Liberal Democratic Party

Updated: 4 January 2011

File reference: Reg3580, 08/1549

The decision of the delegate of the Australian Electoral Commission (the Commission) to accept the application by the Liberty and Democracy Party (LDP) to change its registered name under the Commonwealth Electoral Act 1918 and enter the name Liberal Democratic Party and abbreviation Liberal Democrats (LDP) in the Federal Register of Political Parties was affirmed at a meeting of the three persons who comprise the Commission on 18 February 2010.

Background

On 18 January 2008, staff of the Commission received an application from the Liberty and Democracy Party (the LDP) to change its registered name and abbreviation under the provisions of Part XI of the Commonwealth Electoral Act 1918 (the Electoral Act). The new name sought was Liberal Democratic Party and the new abbreviation was Liberal Democrats (LDP).

Staff of the Commission conducted a series of tests usually undertaken as part of the initial consideration of an application and on 28 July 2008, the delegate of the Commission approved the advertisement of the LDP's application. The application was advertised in the Commonwealth Gazette and newspapers circulating generally in each State and Territory on 1 August 2008. A number of objections to the LDP's application were received following the advertisement of the application under section 132 of the Electoral Act.

Relevant legal provisions and case law

The Electoral Act requires the staff of the Commission to maintain a publicly available 'Register of Political Parties'. Political parties may apply to change the Federal Register of Political Parties (the Register) in accordance with the requirements of Part XI of the Electoral Act.

The key provision of the Electoral Act that was relevant to the consideration of this matter is the restriction on certain names contained in section 129 of the Electoral Act.

Paragraph 129(1)(d) of the Electoral Act provides that the Commission shall refuse an application to change the register where the Commission is of the opinion that a political party name or abbreviation so nearly resembles the name, or an abbreviation or acronym of the name of another recognised political party, that it is likely to be confused with or mistaken for that name, abbreviation or acronym as the case may be. Paragraph 129(1)(da) of the Electoral Act provides that the Commission shall refuse an application to change the register where the Commission is of the opinion that a political party name or abbreviation is one that would cause a reasonable person to think there was a connection or relationship between the party and an already registered party and that connection of relationship does not in fact exist.

The test in paragraph 129(1)(d) of the Electoral Act applies to a "recognised political party" while 129(1)(da) applies to only a "registered party". The term "recognised political party" is defined in subsection 129(2) of the Electoral Act and includes a Parliamentary party, a registered party and a party that is registered or recognised under State or Territory law. The term "registered party" is defined as limited to parties that are already registered under the Electoral Act itself. While this term is not defined in the Electoral Act, the term "Registered political party" is defined in subsection 4(1) and refers to a political party that is registered under Part XI of the Electoral Act. Accordingly, paragraph 129(1)(da) only takes into account political parties that are registered under the Electoral Act and not those registered under State and Territory laws.

Paragraph 129(1)(d) was considered in a 2001 decision of the Administrative Appeals Tribunal in Woollard v Australian Electoral Commission ([2001] AATA 166). In the Woollard case a full bench of the Tribunal comprising three Federal Court judges decided that the name "liberals for forests" was not prohibited from being included on the Register by the operation of paragraph 129(1)(d) of the Electoral Act in spite of the objection from the Liberal Party of Australia (abbreviation Liberal) which was already registered.

The Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Act 2004 inserted paragraph 129(1)(da) into the Electoral Act. The amendment to subsection 129(1) was contained in Item 58 of Schedule 1 to the 2004 Act.

Both paragraphs 129(1)(d) and (da) of the Electoral Act were considered by AAT in TheFishingParty and Australian Electoral Commission and The Australian Fishing and Lifestyle Party (Joined Party) [2009] AATA 170 (the Fishing Party case).

Requests for review

Subsection 141(2) of the Electoral Act provides that where a delegate makes a reviewable decision, a dissatisfied person who is affected by the decision may make a written application for its review within 28 days. Subsection 141(3) provides that an application made under subsection 141(2) must set out the reasons for making the application for review.

A number of applications for review were received following the advertisement of the application from the LDP.

Liberal Party of Australia

The Liberal Party is both a "recognised political party" and a "registered political party". The Liberal Party objected to the original application by the LDP to change its registered name and abbreviation and on 7 January 2009 lodged an application for review following the decision by the delegate of the Commission to approve the name change. A further submission was received on 31 August 2009, after all of the applications for review and the LDP's comments had been distributed to all parties. The deadline for last submissions was 31 August 2009. However on 4 September 2009 another submission from the Liberal Party was received. Although this last submission was received after the deadline, its contents have been considered.

The issues raised by the Liberal Party were:

that the use of the word 'Liberal' in the LDP's name suggests a connection between the LDP and the Liberal Party which does not exist;

that the reasoning in Woollard that the point at which the confusion or mistake is relevant is at the ballot box is an unwarranted limitation upon the statute;

that the statement in Woollard that without clear legislative intent, generic words should not be taken to be locked up, is incorrect as this is the effect of the relevant provision;

that Woollard was correct in establishing that the full range of electors are to be protected from the likelihood of confusion, this includes voters who are irrational, hasty or ill-considered;

that the delegate of the Commission must apply the Electoral Act and not approve registration simply because '[there is] no good reason to refuse the change of name';

that the delegate and staff of the Commission had incorrectly interpreted legal advice it received;

that the Woollard decision was made on different facts and is of little assistance except as a statement of principles;

that paragraph 129(1)(d) of the Electoral Act does not incorporate the reasonable person test and therefore if any voters are likely to be mistaken or confused the delegate of the Commission must refuse the application;

that the delegate of the Commission has incorrectly implied in his statement of reasons that 'objective evidence' is required. Evidence of mistake or confusion may be persuasive, but is not essential to determining likelihood. The delegate of the Commission must make an objective decision as to whether mistakes or confusion are likely to occur, even if no evidence is put forward;

that the polling results provided by the Liberal National Party demonstrate the potential for confusion to occur; and

that there is a significant body of cognitive psychology concerning name confusion that the Commission should consider when determining the likelihood of mistake or confusion.

Liberal National Party

The Liberal National Party of Queensland (LNP) is both a "recognised political party" and a "registered political party". The LNP objected to the LDP's application to change its registered name and abbreviation and on 27 January 2009 lodged an application for review of the delegate's decision to approve the name change.

The issues raised by the LNP are:

that the decision by the delegate of the Commission appears to have taken the view that paragraph 129(1)(da) was ineffective, a result that the LNP considers to be incorrect;

that the paragraph 129(1)(c) limitation on using the name or abbreviation or acronym of another recognised political party should be satisfied in some circumstances where part of a recognised political party's name has been used, as this can have the same potential to cause confusion;

that Australians often shorten phrases or names down to a single word, and this has occurred in the Australian political landscape. The Commission should consider this when interpreting paragraph129(1)(c);

that confusion is caused by the use of identical core words in a name, in this case the words 'Liberal' and 'Democrat';

that the risk of confusion of names is much higher when the names occur in the same context (that is, on a ballot paper).

Australian Democrats

The Australian Democrats objected to the LDP's application to change its registered name and abbreviation and on 23 January 2009 lodged an application for review of the delegate's decision to approve the name change. A further submission was received on 31 August 2009, after all of the applications for review and the LDP's comments on them had been distributed to all parties.

The issues raised by the Australian Democrats are:

that it is likely for confusion to arise should the LDP's name change be approved;

that in his statement of reasons the delegate referred to the LDP being registered in the ACT. The Commission is clearly not bound by the decision of another jurisdiction;

that in his statement of reasons the delegate stated that his decision was 'not completely without doubt'. If there is any doubt the application must be refused;

that written evidence of confusion had been provided with earlier submissions and should be reconsidered.

Response by Liberal Democratic Party

The LDP was offered the opportunity on 10 February 2009 to make comment on the applications for review. They were also invited to make a final submission when a package containing each application for review along with the LDP's responses was sent to all parties on 31 July 2009. On 10 March 2009, the LDP raised the following matters (they didn't respond to the 31 July 2009 invitation which contained no new material on which it had not already commented):

that the Liberal Party is arguing for a presumption in favour of locking up generic words such as 'Liberal', 'Labor' and 'Democrat';

that the argument that irrational, hasty or ill-considered voters must be considered when examining the likelihood of confusion, ignores the reasonableness requirement in the legislation;

that paragraph 129(1)(da) clearly requires the registered party, which a reasonable person might think has a connection or relationship with the LDP, to be identified. The legislation does not consider the possibility of a party being confused with more than one other party. Thus, because there is more than one party that has a similar name, there is no basis to assume that a reasonable person could assume that there was a connection with any of the parties with similar names;

that the delegate of the Commission has not interpreted the legislation so as to render the intent of Parliament ineffective. The intent of Parliament was to prevent the registration of parties that a reasonable person might confuse with another registered party. Because a reasonable person would not confuse the LDP with another party, Parliament's intent remains unharmed;

that the argument that 'a Liberal is a Liberal is a Liberal' and 'a Democrat is a Democrat is a Democrat' should mean that 'a Liberal Democrat is a Liberal Democrat is a Liberal Democrat';

that there was no reliance by the delegate of the Commission on the Liberal Democratic Party's registration in the ACT in its decision.

The Commission's consideration of the issues

In Woollard the Tribunal construed paragraph 129(1)(d) to be concerned with confusion or mistake "in that brief time in the polling booth": paragraph 23. On this approach, the provision is only concerned with a voter being confused or mistaken when seeing the applicant party's name on a ballot paper on which also appears the name of another party whose name closely resembles the applicant party's.

The text of section 129 does not suggest any such restriction. The ordinary meaning of the language is that it is directed at the likelihood of confusion or mistake anywhere at any time.

The policy of the Act does not compel any departure from the ordinary meaning of the language.

The Tribunal says at paragraph 22 that registration of similarly-named political parties is unlikely to affect the many non-polling booth matters dealt with by the Act. One of such matters mentioned is election funding. However, election funding depends on votes received, and will be affected by votes made as a result of confusion or mistake, whether arising in the polling booth or at some earlier time. Indeed the Joint Select Committee on Electoral Reform in its September 1983 Report, quoted in paragraph 21 of Woollard, included public funding of political parties as one of the reasons for urging their registration.

There are other provisions in the Act where registration has significance outside the confines of the polling booth: see Woollard paragraph 11. These include entitlement to copies of the electoral roll (s 91) and exemptions from disclosure of electoral expenditure (s 309(1)). Thus it is not correct to say, as the Tribunal does at paragraph 39, that registration is "relevantly the mechanism by which a political party is entitled to have its name printed on ballot papers against its candidate or … group of candidates". Registration has relevance for other electoral matters.

The Tribunal does not mention the fact that par 129 (1)(d) was amended after the Commission's decision but before the Tribunal hearing. This amendment by the Commonwealth Electoral Amendment Act (No 1) 2000 omitted "Parliamentary party or registered" [party] and substituted "recognized" [party]. By the same Act a new subs (2) was inserted to define the term "recognized political party" to include not only a federally registered party but also a State or Territory registered or recognized party.

The effect of the 2000 amendment was that paragraph 129(1)(d) would now apply where there was confusion or mistake-creating resemblance between the applicant's name and the name of another party which did not, and could not, appear on the (federal) ballot paper.

Another indicator that section 129 is not confined to the polling booth is par (1)(b), which directs the Commission to refuse registration of a name which in its opinion is "obscene". The obvious policy is to prevent the use of party names which are offensive to community standards because of their sexual or scatological connotations. Parliament must have had in mind the use of such names in general public political discourse, in election campaigns and elsewhere, and not just the possibility of voters being suddenly affronted by a name on a ballot paper.

Apart from textual problems, the Tribunal's approach ignores the reality of the democratic process. Registration of a party which in fact had a confusing or mistake-inducing name resemblance to another party would distort and corrupt political and electoral discourse and potentially affect political donations. In the course of an election campaign people would make voting decisions based on confusion or mistake. Most voting decisions are made before that "brief time in the polling-booth".

Objection by Liberal Party of Australia

As to par (1)(d), we accept that there is some resemblance between the names "Liberal Democratic Party" and "Liberal Party of Australia". We adopt, as did the Tribunal in Woollard at paragraph 37, the Oxford English Dictionary meaning of "resemblance": "to be like, to have likeness or similarity to, to have some feature or property in common". Here each name contains the words "liberal" and "party".

But, in our opinion, the former is not likely to be confused with, or mistaken for, the latter. The Australian experience is that words suggesting some general political or philosophical ideal or concept have been commonly used in the names of different political parties without causing significant problems.

As the delegate of the Commission at the time, Mr Tim Pickering, noted in his decision, the Register includes or has included at one point, registrations of:

ACT Green Democratic Alliance

Australian Ethnic Democrats

Christian Democratic Party (Fred Nile Group)

Curtin Labor Alliance

Democratic Labor Party (DLP) of Australia

Democratic Socialist Electoral League

Democratic Socialist Party

Liberty and Democracy Party

Progressive Labour Party

Rex Connor (Senior) Labor Party

Turning to paragraph (1)(da), the criterion here is not, or not necessarily, any resemblance of names, but rather the existence of some feature which, in the Commission's opinion, might suggest to a reasonable person a connection or relationship between the applicant party and a registered party (not, it should be noted, a recognised party – thus the provision is only concerned with suggested connections or relationships with federally-registered parties).

For the reasons already mentioned, the hypothetical reasonable person is to be credited with an awareness that political appellations of a general kind such as"liberal", "labor" and "democratic" are commonly used by different political parties.

Objection by Liberal National Party of Queensland

This objection must be rejected for essentially the same reasons.

Objection by Australian Democrats (ACT Division)

Again we reject the objection, for the same reasons. The different adjectives "Liberal" and "Australian" clearly convey difference. The objector cannot obtain a monopoly right to the term "democrats": see Woollard at paragraph 40.

Conclusion

The Commission has therefore decided that the delegate's decision to approve the application of the Liberty and Democracy Party (LDP) to change their name and abbreviation in the Federal Register of Political Parties to the Liberal Democratic Party (Liberal Democrats (LDP)) should be affirmed.